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Arnold v. United States

July 30, 2009

JEFFERY ARNOLD, PETITIONER,
v.
UNITED STATES OF AMERICA, RESPONDENT.



The opinion of the court was delivered by: James F. Holderman, Chief Judge

MEMORANDUM OPINION AND ORDER

For the reasons set forth below, petitioner Jeffery Arnold's "Motion to Vacate, Set Aside, or Correct Sentence by a person in Federal Custody" under 28 U.S.C. § 2255 (Dkt. No. 1) is denied.

BACKGROUND

Petitioner Jeffery Arnold ("Arnold") does not dispute the following facts, as set forth by the United States Court of Appeals for the Seventh Circuit in its opinion on Arnold's direct appeal:

In September 2004, while serving in the United States army in Iraq, Arnold began communicating in an Internet chat room . . . with "Mandy," who he thought was a 12-year-old girl. Actually, "Mandy" was an undercover agent employed by the Cook County Sheriff's Department in Illinois. Over the next several months, Arnold communicated with "Mandy" by email, instant message, web camera, and cell phone, and discussed meeting her in person. After returning from Iraq, Arnold continued communicating with "Mandy." In April of 2005 he emailed her, on three separate occasions, photographs of prepubescent female minors performing oral sex on adult males. He also used a web camera to send "Mandy" real-time images of himself masturbating.

In May of 2005 Arnold began communicating with a 15 year-old girl (who was not an undercover agent) in Portland, Oregon, through an Internet chat room and instant messaging. He also tried to send her a computer file with a photograph of a minor girl performing oral sex on an adult male, and he discussed with her whether she would run away to meet him and engage in sexual activity. Finally, Arnold communicated several times with a second undercover officer posing as a minor female (this time the name was "Vanessa") in San Antonio, Texas, conducting communications similar in nature to those he had with "Mandy."

Arnold was arrested in May 2005 based on his communications with "Mandy."

United States v. Arnold, No. 06-4218, 2008 WL 370927, at *1 (7th Cir. Feb. 12, 2008).

On June 28, 2005, a federal grand jury charged Arnold with one count of using the Internet to attempt to persuade, induce, and entice a person he believed to be a minor to engage in sexual activity, in violation of 18 U.S.C. § 2422(b); and three counts of transporting child pornography through interstate commerce, in violation of 18 U.S.C. § 2252A(a)(1). United States v. Arnold, 05 CR 478 (N.D. Ill.). On September 27, 2005, pursuant to a plea agreement Arnold plead guilty to one count of knowingly transporting child pornography through interstate commerce in violation of 18 U.S.C. § 2252A(a)(1). (05 CR 478, Dkt. No. 34 ("Plea Agreement").)

Arnold was sentenced on November 30, 2006. After calculating the appropriate Guidelines range (including a seven-level enhancement pursuant to § 2G2.2(b)(3)(E) of the United States Sentencing Guidelines) and considering all of the relevant factors under 18 U.S.C. § 3553(a), this court sentenced Arnold to the statutory maximum of 20 years imprisonment. (05 CR 478, Dkt. No. 57.) Arnold timely appealed and argued that, although the Sentencing Guidelines range was properly calculated, the sentence imposed was unreasonable. Arnold, 2008 WL 370927, at *2. On appeal the Seventh Circuit "conclude[d] that the sentence was reasonable." Id. at *4. Arnold did not file a petition for certiorari to the United States Supreme Court. On March 19, 2009, Arnold timely filed the pending § 2255 motion.

LEGAL STANDARD

Under § 2255, "[a] prisoner in custody under sentence of a [federal] court . . . may move the court which imposed the sentence to vacate, set aside or correct the sentence." 28 U.S.C. § 2255(a). If the court finds that the sentence imposed was in violation of the petitioner's constitutional rights, the court must vacate and set aside the judgment and discharge petitioner, resentence the petitioner, grant a new trial, or correct the sentence. 28 U.S.C. § Section 2255(b).

ANALYSIS

In this case, Arnold argues that his sentence should be vacated because it was imposed in violation of his constitutional right to the effective assistance of counsel and his due process ...


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